101.6. The conclusions of the Office of Appeals have traditionally been summarized in memoranda called the "General Counsel's Minute." Plaintiff does not seek access to these documents.
Thereafter the General Counsel either sustains the refusal to proceed or orders the Regional Director to issue the complaint. Additionally the Office of Appeals prepares a second memorandum -- the "agenda minute" -- which provides an analysis of the decision and which is sent to the Regional Director. It is access to this second group of appeals memoranda that plaintiff seeks.
Letters containing only the result, though not necessarily the underlying rationale, were sent to the parties previously in this action. During the pendency of this action a new policy has been instituted by the General Counsel whereby a portion of the information found previously only in the agenda minutes is included in these letters.
The Action of the General Counsel's office on appeals of the refusal of Regional Directors to issue complaints, whether made pursuant to "advice" from the Counsel office or otherwise is clearly final. This is not a preliminary view or a record of advocacy and debate, it is a final determination of the General Counsel's staff of the disposition of a charge. It is not an expression of a point of view, it is the disposition of a charge. As such the Appeals memorandum lies outside the Act's § (b)(5) exemption. Congress intended by that exemption only to promote the "free flow of information" Ackerly v. Ley, 137 U.S. App. D.C. 133, 420 F.2d 1336, 1341 (1969), and did not "design it to facilitate the easy exchange of substantive declarations of policy. Indeed, if it were, the exemption would have clearly engulfed the rule." Sterling Drug, Inc. v. F.T.C., 146 U.S. App. D.C. 237, 450 F.2d 698, 713 (D.C. Cir. 1971) Bazelon J. dissenting in part. See also, Davis, "The Information Act: A Preliminary Analysis," 34 Chicago Law Rev. 761. Since the memoranda lie outside the exemption, they must be disclosed. Tennessean Newspapers, Inc. v. F.H.A., 464 F.2d 657 (6th Cir., 1972); Getman v. NLRB, 146 U.S. App. D.C. 209, 450 F.2d 670, 672 (D.C. Cir. 1971).
It follows, further, that documents incorporated by reference in Advice and Appeals memoranda, even though possibly qualified for a Sec. (b) exemption taken separately, must also be disclosed, since they have lost their exempt status by incorporation. American Mail Line Ltd. v. Gulick, 133 U.S. App. D.C. 382, 411 F.2d 696, 703 (1968).
Upon consideration of the undisputed facts and after examining examples of the requested memoranda, this Court concludes: (a) that the Advice and Appeals memoranda are not "intra-agency memorandums" within the meaning of § 552(b)(5) of the Act; (b) that the Advice memoranda are "instructions" which affect a member of the public within the meaning of the Act; (c) that the Appeals memoranda issued in cases still pending, including those issued in Board Case No. 19-CB-1673, are "final opinions" within the meaning of the Act; (d) that documents expressly incorporated by reference are in fact part of said memoranda; (e) that in cases where the aforesaid memoranda rely upon and make reference to the "circumstances of the case" without delineating these "circumstances" the General Counsel must produce explanatory material including documents unless the General Counsel demonstrates such documents to be exempt; (f) that the Advice and Appeals memoranda made available shall include the names of the parties, the names of the attorneys, citations to prior cases and all other information for which justification for deletion has not been explained fully in writing except the names of affiants, and settlement suggestions from the Office of the General Counsel to the regional directors; and (g) that, the Act requires that the Advice and Appeals memoranda issued since July 4, 1967 be indexed and such indices be made available to the public.
Accordingly, the Court concludes that the plaintiff's motion for summary judgment should be granted and the defendant's motion for summary judgment be denied. It is so ordered and further ordered that
(1) that defendants promptly make available to the public all Appeals and Advice memoranda issued since July 4, 1967, and any document expressly incorporated therein by reference;
(2) that defendants with reasonable promptness produce and compile, if necessary, indices of said memoranda;
(3) that defendants produce explanatory material including existing documents in those instances where Advice or Appeals memoranda rely upon the "circumstances of the case" or some other vague and imprecise reference without delineating what those circumstances are except where they can demonstrate that these documents are exempt under the Act;
(4) that defendants cease and desist from deleting from said Appeals and Advice materials the names of parties, the names of attorneys, citations to prior cases and all other information for which a justification for deletion has not been explained fully in writing except settlement suggestions from the Office of the General Counsel and the names of affiants.